[Cite as State ex rel. Thomas v. Miller, 2015-Ohio-4345.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE ex rel. ) CASE NO. 15 BE 28
BARRY L. THOMAS )
)
PETITIONER ) OPINION AND
) JUDGMENT ENTRY
VS. )
)
MICHELE MILLER, WARDEN )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus.
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Barry L. Thomas, Pro se
#593-538
Belmont Correctional Institution
68518 Bannock Rd.
P.O. Box 540
St. Clairsville, Ohio 43950
For Respondent: Atty. Atty. Mike DeWine
Attorney General of Ohio
Atty. Paul Kerridge
Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
Dated: October 15, 2015
[Cite as State ex rel. Thomas v. Miller, 2015-Ohio-4345.]
PER CURIAM.
{¶1} Petitioner Barry L. Thomas seeks a writ of habeas corpus to be
released from custody related to his conviction and sentence in Stark County Court of
Common Pleas Case No. 2010CR1308. R.C. 2725.01 provides: “Whoever is
unlawfully restrained of his liberty, or entitled to the custody of another, of which
custody such person is unlawfully deprived, may prosecute a writ of habeas corpus,
to inquire into the cause of such imprisonment, restraint, or deprivation.” The writ of
habeas corpus is an extraordinary writ and will only be issued in certain
circumstances of unlawful restraint of a person's liberty where there is no adequate
legal remedy at law, such as a direct appeal or postconviction relief. In re Pianowski,
7th Dist. No. 03MA16, 2003-Ohio-3881, ¶3, citing State ex rel. Pirman v. Money, 69
Ohio St.3d 591, 593 635 N.E.2d 26 (1994). The burden is on the petitioner to
establish a right to release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601
(1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963).
Respondent has filed a motion to dismiss the petition. For the following reasons, we
sustain Respondent's motion.
{¶2} It is immediately apparent that Petitioner was released from prison on
August 18, 2015, rendering this petition moot. In addition, R.C. 2725.01, et seq.,
governs habeas filings, and failure to satisfy these statutory requirements is generally
fatal to the petition. One of the requirements is that the petitioner must file all the
commitment papers pertinent to the arguments being raised in the petition. R.C.
2725.04(D). The commitment papers are necessary for a complete understanding of
the petition. Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992).
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Petitioner has not filed any commitment papers regarding Stark County Case No.
2010CR1308. Failure to attach copies of the commitment papers as part of the
original filing of the petition for habeas corpus requires the dismissal of the petition.
Id.
{¶3} Similarly, the petition has not been verified as required by R.C. 2725.04
(“Application for the writ of habeas corpus shall be by petition, signed and verified * *
*.”). In this context, “verification” means a “formal declaration made in the presence
of an authorized officer, such as a notary public, by which one swears to the truth of
the statements in the document.” Chari v. Vore, 91 Ohio St.3d 323, 327, 744 N.E.2d
763 (2001). Failure to verify the petition warrants immediate dismissal. Id. Petitioner
has attached a form titled “AFFIDAVIT OF VERITY” that has no particular notations
on it relating to this particular habeas action or to Stark County Case No.
2010CR1308. This document is not notarized. There is an unrelated page following
the affidavit that was photocopied from a document he labels as a “Truth in
Commerce” form that contains a photocopy of a notary stamp, but this has nothing to
do with his affidavit.
{¶4} In addition, it is evident that Petitioner has not filed a complete and
accurate affidavit of prior civil actions. According to R.C. 2969.25, petitioner was
required to file with his petition a list of all other civil actions filed by him within the
past five years:
(A) At the time that an inmate commences a civil action or appeal
against a government entity or employee, the inmate shall file with the
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court an affidavit that contains a description of each civil action or
appeal of a civil action that the inmate has filed in the previous five
years in any state or federal court.
{¶5} Petitioner's affidavit states that no criminal or civil actions have taken
place in the past five years. Yet, he filed a habeas action in this Court on June 29,
2012. He also filed actions in the Ohio Supreme Court on June 10, 2010 and July 9,
2010. He filed a notice of appeal in Stark County Case No. 2010CR1308 on
December 10, 2010. All of these were within five years of the filing of this habeas
action on May 1, 2015. Misstating information on the R.C. 2969.25 civil action
affidavit is grounds for dismissing the habeas petition. State ex rel. Bristow v.
Huffman, 138 Ohio App.3d 500, 2000-Ohio-2659, 741 N.E.2d 630, ¶2.
{¶6} Finally, Petitioner's argument regarding the jurisdiction of the trial court
over his case is res judicata as it was raised in an earlier habeas petition. Petitioner
filed a previous petition for writ of habeas corpus with this Court regarding the same
underlying trial court case, Case No. 2010CR1308. State ex rel. Samoth-El v. Miller
[aka Barry Lynn Thomas], 7th Dist. No. 12 BE 23, 2012-Ohio-5611. Petitioner
argued that the Stark County Court of Common Pleas had no jurisdiction over him
and had no authority to send him to prison. We disagreed:
Petitioner's claim that the sentencing court lacked jurisdiction also fails.
Petitioner does not provide an intelligible explanation as to why the
Stark County Court of Common Pleas lacked jurisdiction over the
matter. Further, our review fails to disclose a patent and unambiguous
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lack of jurisdiction. From the sentencing entry, the Stark County clerk's
docket, and the Fifth District's opinion in the direct appeal, it is evident
that Petitioner committed the crime in Stark County, that he was
indicted by a Stark County grand jury, subsequently tried before a Stark
County jury and then sentenced by the Stark County Court of Common
Pleas. Accordingly, we deny the writ on this ground also.
Id. at ¶9.
{¶7} Under the doctrine of res judicata, a valid final judgment prohibits a
party from relitigating issues in a subsequent action or proceeding that were raised or
could have been raised in an earlier action or proceeding. State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. The doctrine of
res judicata is applicable to successive habeas corpus petitions. Hudlin v. Alexander,
63 Ohio St.3d 153, 156, 586 N.E.2d 86 (1992). Petitioner argues that the order of
commitment (an order that he did not attach to the petition) was invalid on its face
due to “extra territorial acts” of the trial court. We have already ruled that Petitioner
committed his crime in Stark County, that the proceedings took place in Stark
County, and that he was convicted and sentenced in Stark County by the Court of
Common Pleas. His argument appears to be the same one used in the earlier
habeas case, and any other nuances to the argument could have been raised in the
earlier proceeding. Therefore, the doctrine of res judicata bars any further litigation of
this matter.
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{¶8} For all the procedural and substantive reasons already stated,
Respondent’s motion to dismiss is sustained and the petition for writ of habeas
corpus is dismissed.
{¶9} Final order. Costs taxed against Petitioner. Clerk to serve notice as
provided by the Civil Rules.
Waite, J., concurs.
Donofrio, P.J., concurs.
Robb, J., concurs.